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Googly irony

Yes, Phipps does call Google's inclusion of the new language "ironic." In the past, Google and its open source guru Chris DiBona have spoken out against the proliferation of open source licenses, and the new VP8 license, well, proliferates open source licenses. "Given their previous position on proliferating, I can understand their reluctance to come to the OSI with a new license," Phipps told us.

For what it's worth, Phipps argued that license proliferation isn't the problem people make it out to be. "Proliferation is a problem. It means that people coming to open source for the first time get confused and it distracts them from the task at hand," he said. "But most open source projects coalesce around a few licenses, and in the final analysis, most of the problems that result from a new license are faced by the company that writes it rather than by the community."

What's more, he told us that Google may indeed have a very good reason for creating a new license. There may not be a strong non-copyleft license out there, he said, that also provides the sort of protection against patent attack Google is trying for.

Despite his previous arguments against proliferation, Google's Chris DiBona told us that the company is doing what's best — and that it will soon approach the OSI. "Well, we're not big on proliferation, but basically we're pretty happy considering the license bsd + patent grant for now until the dust settles after the launch," he said.

"We'll likely engage with OSI in the coming weeks. We've released a lot of code, and given a lot of patent grants via Apache licensed software and others, so I think that we've shown, through our actions, that we are on the side of angels here."

Phipps said that until Google wins OSI approval, VP8 "is not currently open source." But he believes this can be sorted. "WebM is not currently open source, despite using a license based on the BSD and Apache licenses. This problem can be readily fixed by Google, and speaking as a member of the OSI Board I'd love to see them submit a templatised version of this license for approval."

"They've indicated they intend to 'follow best practices,' so I'm hopeful, even if it means slight embarrassment over license proliferation."

But even if the license issue gets solved, Phipps is concerned that the codec may be vulnerable to patent holders. Asked about such concerns, Google's Mike Jazayeri told us the company is confident VP8 will stand up to the sort of patent attack that Steve Jobs claimed was on its way to Ogg Theora.

The CEO of MPEG-LA — the organization that licenses H.264 on behalf of patent holders like Apple and Microsoft — has already said it's "looking into" a patent pool license for VP8, threatening Google's efforts to make VP8 a royalty-free option. And like other open source supporters, Simon Phipps has called on Google to provide adopters with a bit more information.

"Despite their claims that WebM was been checked for patent risks when ON2 was acquired, Google has neither made its research available nor does it offer a patent indemnity. Google has expressed extreme confidence in the patent safety of WebM, yet has failed to create a patent pool with its other endorsers and and grant free and indemnified licenses to WebM users," Phipps wrote.

"That means the path is open for those hostile to digital liberty, such as the MPEG-LA licensing cartel, to 'tax' VP8 users — they have already declared an intent to do so. Google should rapidly create 'WebM-LA' with $0 licensing terms for those willing to commit to digital liberty."

Phipps also warned that although Google has donated its VP8 code to world+dog, the codec is not yet an open standard. "Simply making the code for VP8 open source does not automatically make it an open standard," he said, before pointing to a blog post from former Sun employee Rob Glidden, where the Java video man urged Google to submit WebM to a standard group with a strong patent disclosure policy. Glidden went so far as to say that in opening VP8 on its own, Google is "undermin[ing] the very standards groups the open Web needs to thrive and grow."

Echoing Google, Phipps said that VP8 "offers the possibility for video and audio to be represented in a way that is truly open and accessible to everyone in the world, without the anachronistic licensing barriers associated with H.264." But before this happens, he insisted, the company must do more.

"Google's do-it-all-ourselves mentality has made them forget or avoid addressing three very important issues: open source licensing, patent indemnity, and open standardisation," he said.

"Over the weekend I have heard from many thoughtful people who like me want to cheer loudly yet also want these issues addressed. How about it, Google?" ®